McCarthy v. AT&T Communications Inc.

The respondent was represented by Thomas A. Mulligan, Jr., Esq., McNamara and Kenney, 75 Kings Highway Cutoff, Fairfield, CT 06430.

This Petition for Review from the September 8, 1997 Finding and Dismissal of the Commissioner acting for the Sixth District was heard March 27, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The pro se claimant has petitioned for review from the September 8, 1997 Finding and Dismissal of the Commissioner acting for the Sixth District. The trial commissioner found in that decision that the claimant had not sustained her burden of proof that she had suffered a cervical injury based on cumulative or repetitive trauma which arose out of and during the course of her employment at the respondent AT&T. The claimant argues on appeal that the trial commissioner erred in his findings. The respondent has filed a motion to dismiss for failure to file timely reasons of appeal. We deny the respondent’s motion to dismiss, but affirm the trial commissioner’s decision.

We will first address the respondent’s motion to dismiss for failure to file timely reasons of appeal. Section 31-301-2 of the Administrative Regulations states that within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal. The claimant here filed her petition for review on September 17, 1997. She was unable to maintain counsel due to financial constraints, and chose to proceed pro se on appeal. She did not subsequently file a separate document entitled “Reasons for Appeal.” She did file a brief on January 14, 1998 that explained the grounds for her appeal and her arguments.

Generally, this board has the discretion to dismiss an appeal when the appellant fails to file required documents in a timely fashion. See Norton v. James Fleming Trucking, Inc., 15 Conn. Workers’ Comp. Rev. Op. 472, 474, 2119 CRB-1-94-8 (Sept. 16, 1996). Where a claimant is proceeding pro se on appeal, however, this board relaxes the rules of procedure in recognition of the claimant’s unfamiliarity with the law. Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (April 14, 1997). In this case, the claimant provided a brief that adequately communicates the basis of her appeal. We do not believe that the respondent was prejudiced in its defense of this appeal by the claimant’s failure to file Reasons for Appeal within ten days of the date she filed her petition for review. Thus, we decline to dismiss her appeal for this reason, and deny the motion to dismiss. See Hines, supra.

We now turn to the merits of the claimant’s appeal. The claimant contends that the trial commissioner erred in his findings. This board does not retry the facts because the power to determine the facts rests with the trial commissioner as the trier of fact. This authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995)(citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988)1

In the instant case, the trial commissioner found that when the claimant visited Dr. Linburg in December 1990, she “made no mention of a cervical problem.” The only reference to a possible cervical problem was the passing mention of “trapezius muscle and neck . . . discomfort” (Claimant’s Exhibit Q). Nowhere else does the doctor make reference to a neck injury. The trial commissioner found, based on this evidence, that Dr. Linburg’s diagnosis was for carpal tunnel syndrome and not for a cervical injury. Similarly, the trial commissioner found that Dr. Hodgson also made no mention of a neck/cervical problem. The doctor’s report simply reflects that the claimant stated that she felt “like her arms were pulling out.” (Respondent’s Exhibit 3, p. 1 of report dated November 18, 1992). This is not a reference to a specific neck injury, and Dr. Hodgson’s diagnosis was for carpal tunnel syndrome. The commissioner found this evidence credible, and we are not in a position to disturb his findings.

The claimant also takes issue with the use of the term “accident” in reference to an incident where she aggravated her neck while tubing (Commissioner’s Finding of Fact, paragraph 25). She asserts that the use of this term misled the commissioner in his understanding of the incident. The thrust of the commissioner’s finding was that the claimant did not inform Dr. Belman of the incident which led to treatment with Dr. Hartney. The claimant is not objecting to the fact that she did not mention her tubing experience to Dr. Belman, but to the trier’s use of the term “accident.” The fact that the trial commissioner referred to a “tubing incident” (Findings, ¶ 38) illustrates that he was not under the impression that there had been an accident. Furthermore, inferring that the incident was an “accident” would not have affected the commissioner’s finding. The more important point was that the commissioner found that, as a result of this incident, the pain in the claimant’s neck was now on her left side as opposed to her right side, where it had allegedly been when she treated with Dr. Keating in 1990. This finding is significant in that a neck injury sustained while tubing would not be compensable, because it would not have arisen out of and in the course of her employment. C.G.S. § 31-275(1).

Ultimately, the trial commissioner found Dr. Shafer’s “opinions as to causation (and lack of it) . . . credible and persuasive.” (Findings, ¶ I.). Dr. Shafer stated that medically it can not be explained why one gets pain in the trapezius muscle, and that any cervical pain the claimant may have experienced due to her work station would have quieted down after being out of work for a long period of time. (Respondents Exhibit 11, pages 13-18). In addition, the trial commissioner found that the claimant’s testimony as to her injury, treatment, or disability was not persuasive. As noted above, issues of credibility are solely for the trial commissioner to determine. Kish v. Nursing and Home Care, 47 Conn. App. 620, 627 (Feb. 10, 1998). This Board can not reverse a commissioner’s decision regarding the weight to give particular evidence. Therefore, we must affirm the trial commissioner’s decision.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

1 The claimant did not file a Motion to Correct pursuant to Administrative Regulation § 31-301-4. This is significant because without a Motion to Correct, this board is limited to the trial commissioner’s factual findings on review. Therefore, we must presume the findings here are accurate for the purpose of this appeal . Seltenreich v. Stone & Webster 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). BACK TO TEXT